Opinion
NOT TO BE PUBLISHED
(JCCP 4365)
McGuiness, P.J.
In one of the most closely watched California cases in recent memory, In re Marriage Cases (2008) 43 Cal.4th 757, 856 (Marriage Cases), our Supreme Court held that state statutes denying same-sex couples the right to marry violated the California Constitution. The Supreme Court also affirmed this court’s determination that one of the parties, appellant Campaign for California Families (Campaign), lacked standing to sue and consequently should have been dismissed from the proceeding by the trial court. (Id. at pp. 791-792.) The Supreme Court provided that the prevailing parties were entitled to recover their costs. (Id. at p. 857.)
In this appeal, Campaign challenges two orders directing it to pay costs totaling slightly more than $12,000. Characterizing its role in the litigation as that of an amicus curiae, Campaign contends it cannot be assessed costs of suit as if it were a party. We shall affirm the trial court’s orders directing Campaign to pay costs.
Although this appeal arises out of the Marriage Cases coordinated proceeding, it concerns only one of the six coordinated cases, Campaign for California Families v. Newsom (Super. Ct. S.F. City & County, No. 428794).
Procedural History
The origin of the Marriage Cases can be traced back to February 12, 2004, when the City and County of San Francisco (City) began issuing marriage licenses to same-sex couples. (Marriage Cases, supra, 43 Cal.4th at p. 785.) The following day, Campaign filed an action in San Francisco Superior Court, originally entitled Thomasson v. Newsom and subsequently retitled as Campaign for California Families v. Newsom (Campaign) (Super. Ct. S.F. City & County, No. 428794). (Marriage Cases, supra, 43 Cal.4th at p. 785.) The Campaign sought a writ of mandate and immediate stay to prohibit the issuance of marriage licenses to same-sex couples. On the same day Campaign filed its lawsuit, the Proposition 22 Legal Defense and Education Fund (Fund) filed a separate lawsuit seeking the same relief as Campaign in Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco (Fund) (Super. Ct. S.F. City & County, No. 503943). (Marriage Cases, supra, 43 Cal.4th at p. 785.)
After the trial court declined to grant an immediate stay in the Campaign and Fund actions, the California Attorney General and a number of taxpayers filed two separate writ petitions in the Supreme Court requesting that court’s immediate intervention to halt the issuance of marriage licenses to same-sex couples. (Marriage Cases, supra, 43 Cal.4th at p. 785.) On March 11, 2004, the Supreme Court agreed to intervene in the case, which ultimately resulted in the decision contained in Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 (Lockyer). At the time it agreed to take the case, the court issued an order directing City officials to refrain from issuing marriage licenses to same-sex couples. The court’s order also stayed all proceedings in the Campaign and Fund cases then pending in the San Francisco Superior Court. (Id. at pp. 785-786.) However, the Supreme Court indicated that its stay order did not preclude the filing of a separate action raising a direct challenge to the constitutionality of California’s marriage statutes. (Id. at p. 786.)
Shortly after the Supreme Court issued a stay in the Lockyer action, the City filed a writ petition and complaint for declaratory relief in the trial court, seeking a declaration that California statutory provisions limiting marriage to unions between a man and a woman violate the California Constitution. (Marriage Cases, supra, 43 Cal.4th at p. 786.) A number of same-sex couples filed similar actions challenging the constitutionality of California’s marriage statutes. (Ibid.) A judge appointed by the Chair of the Judicial Council ordered that a total of six actions, including the Campaign and Fund lawsuits as well as the lawsuits challenging the constitutionality of California’s marriage statutes, be coordinated into a single proceeding entitled In re Marriage Cases (JCCP No. 4365). (Ibid.)
While the Marriage Cases coordination proceeding was pending in the trial court, the Supreme Court issued its decision in Lockyer, concluding that City officials lacked authority to issue marriage licenses to same-sex couples in the absence of a judicial determination that statutory provisions limiting marriage to a union between a man and a woman were unconstitutional. (Lockyer, supra, 33 Cal.4th at p. 1069.) The court issued a writ of mandate directing the City to comply with the marriage statutes then in effect and to notify all same-sex couples who had been married before the Supreme Court issued its stay that their marriages were invalid and a legal nullity. (Id. at pp. 1069, 1120.)
Following issuance of the remittitur in Lockyer, Campaign and Fund moved to amend their complaints in the Marriage Cases to include claims for declaratory relief. The City and other parties opposed the request and moved to dismiss the Campaign and Fund actions as moot, arguing that the Supreme Court’s decision in Lockyer had granted all the relief sought in the lawsuits and that the plaintiffs in those actions lacked standing to pursue bare claims for declaratory relief. The trial court denied the request to amend but also denied the motion to dismiss, concluding that the Campaign and Fund complaints adequately stated claims for declaratory relief concerning the constitutionality of the marriage laws.
These facts are based in part on the file and opinion of this court in the prior appeal consisting of six consolidated cases, docket numbers A110449, A110450, A110451, A110463, A110651, and A110652. On the court’s own motion, we take judicial notice of the record and our opinion in the prior appeal. (See Forbes v. County of San Bernardino (2002) 101 Cal.App.4th 48, 50-51; Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
On April 13, 2005, the trial court issued a decision in the Marriage Cases, ruling that California statutes defining marriage as a union between a man and a woman violated the California Constitution. (Marriage Cases, supra, 43 Cal.4th at p. 787.) Campaign, along with other losing parties, appealed the trial court’s decision to this court. In the proceedings before this court, Campaign filed an opening and a reply brief, and was permitted to participate in oral argument as a party. This court reversed the trial court on the substantive constitutional issue presented, holding that the marriage statutes then in effect did not violate the California Constitution. (Marriage Cases, supra, 43 Cal.4th at p. 788.) However, this court also held that the Campaign and Fund cases should have been dismissed by the trial court following the decision in Lockyer because Campaign and Fund lacked standing to seek purely declaratory relief. (Id. at p. 790.)
The Supreme Court granted review in the Marriage Cases. Before the Supreme Court voted to grant review, Campaign had filed an answer brief opposing review. After review was granted, Campaign filed an opening brief addressing justiciability issues, an answer brief on the merits, a supplemental brief on justiciability issues, a supplemental reply brief on the merits, and an answer to amicus curiae briefs. As in this court, Campaign was permitted time at oral argument to argue as a party on the merits as well as on the issue of its standing.
On the court’s own motion, we take judicial notice of the register of actions in In re Marriage Cases, S147999. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On May 15, 2008, the Supreme Court issued its opinion in the Marriage Cases, holding that marriage statutes violated the California Constitution to the extent they limited marriage to opposite-sex couples. (Marriage Cases, supra, 43 Cal.4th at p. 785.) Although the Supreme Court reversed this court on the substantive constitutional question, it affirmed this court’s holding that Campaign and Fund lacked standing, concluding that “once [the Supreme Court’s] decision in Lockyer granted the mandamus relief sought by the Fund and the Campaign in their previously filed lawsuits against the City and its officials, the superior court should have dismissed those actions as moot.” (Id. at pp. 791-792, fn. omitted.) The Supreme Court indicated that the prevailing parties were entitled to recover their costs. (Id. at p. 857.)
Subsequently, at the general election held on November 4, 2008, a majority of the voters approved Proposition 8, an initiative measure that amended the California Constitution to provide that “[o]nly marriage between a man and woman is valid or recognized in California.” (Cal. Const., art. I, § 7.5.)
The City filed a memorandum of costs on appeal seeking a total of $16,919, representing costs for the preparation of the reporter’s transcript and the printing of briefs. Another set of parties, referred to by the trial court collectively as the “Rymer/Equality California” parties, filed a memorandum of costs on appeal in which they sought to recover $16,787.01, composed of filing fees, costs of printing briefs, expenses of litigation services, and costs of transmitting and filing briefs and other papers. The Rymer/Equality California parties also sought to recover trial court costs totaling $2,539.80.
Campaign filed a motion to strike costs or, in the alternative, to tax costs, claiming (1) it was not liable for costs on appeal because this court and the Supreme Court agreed it was “merely an amicus curiae,” and (2) the costs were unreasonable. Although Fund likewise challenged the cost bills, it did not suggest it was excused from paying costs as a consequence of the appellate ruling that it lacked standing.
The trial court denied Campaign’s motion to strike, or in the alternative, to tax costs. The court chose to divide the City’s and the Rymer/Equality California parties’ costs equally among three parties—Campaign, Fund, and the State of California. Thus, the court ordered Campaign to pay the City $5,639.66 as appellate costs and to pay the Rymer/Equality California parties $6,442.27 as trial and appellate costs. Campaign timely appealed the orders awarding costs.
Discussion
Campaign does not dispute the amount or allocation of the cost award. Nor does it contest the determination that the City and the Rymer/Equality California parties are prevailing parties entitled to an award of costs. Instead, Campaign’s sole argument on appeal is that it is not a “party” liable to pay costs in light of the determination by the Supreme Court that it lacked standing to pursue its lawsuit. As we shall explain, this contention is meritless.
In its reply brief, for the first time on appeal, Campaign suggests that the allocation of costs was unfair in that Los Angeles County, a party to one of the lawsuits in the coordinated Marriage Cases proceeding, was not assessed costs, thus causing the remaining parties to bear an increased share of the overall costs. Because the issue was raised for the first time in Campaign’s reply brief and no good reason was offered to explain the failure to raise the matter previously, we may decline to consider it. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) In any event, the decision to exclude Los Angeles County from the order awarding costs was a matter within the trial court’s discretion, and Campaign has offered no reason for us to believe the court abused its discretion. Among other things, the trial court noted that, unlike Campaign, which was an active participant in the trial court and appellate proceedings, Los Angeles County was not an active participant, becoming a “dormant party pretty quickly” that “didn’t participate in the festivities at all.”
A trial court’s award of costs is ordinarily reviewed for abuse of discretion. (See Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 978.) However, when “the determination of whether costs should be awarded is an issue of law on undisputed facts, we exercise de novo review. [Citation.]” (City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678.) Because Campaign’s appeal presents a pure question of law based on undisputed facts, de novo review is warranted.
The appeal rests on the false premise that Campaign participated in the Marriage Cases as amicus curiae, with Campaign asserting it “was given status only as a ‘friend of the court’ for briefing and other activities during the underlying appeals.” The assertion is factually insupportable.
The role of a person or entity permitted to file an amicus curiae brief is distinct from that of a party. “Amici curiae, literally ‘friends of the court,’ perform a valuable role for the judiciary precisely because they are nonparties who often have a different perspective from the principal litigants. ‘Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions.’ [Citation.]” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1177 (Connerly).)
Unlike a party to an appellate proceeding, which has a right to file briefs and participate in oral argument, an amicus curiae has a much more limited involvement. Amicus curiae briefs may be filed in the Court of Appeal or the Supreme Court only with the express permission of the presiding justice or the Chief Justice. (Cal. Rules of Court, rules 8.200(c)(1), 8.520(f)(1).) In addition, amicus briefs generally must be confined to the issues raised by the appealing parties. (California Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, 498.) Issues raised on appeal for the first time by amici curiae ordinarily will not be considered. (Ibid.) Also, an amicus curiae has no right to appear at oral argument. In the Court of Appeal, an amicus curiae may present oral argument only with the court’s permission upon written request. (Cal. Rules of Court, rule 8.256(c)(2).) In the Supreme Court, an amicus curiae is not entitled to argument time but may ask a party for permission to use a portion or all of that party’s allotted time. (Cal. Rules of Court, rule 8.524(g).)
Here, Campaign participated as a party, not an amicus curiae, in the proceedings before the trial court, the Court of Appeal, and the Supreme Court. It was not required to secure permission to file briefs. It was not confined to arguments raised by other parties to the proceedings. It was allotted time at oral argument without having to request the permission of the court or other parties.
The Supreme Court’s decision in Marriage Cases did not transform Campaign into an amicus curiae. Citing footnote 10 of the Marriage Cases opinion, Campaign states the Supreme Court “unequivocally determined that Appellant did not have standing as a party and Appellant’s participation was only that of an amicus curiae.” To the contrary, the Supreme Court simply held that Campaign lacked standing to pursue its claims in the Marriage Cases after the court’s decision in Lockyer. (Marriage Cases, supra, 43 Cal.4th at pp. 790-791.) In the footnote relied upon by Campaign, the Supreme Court did not declare that Campaign was an amicus curiae. Rather, the court simply observed that Campaign’s lack of standing would not have prevented Campaign from participating as an amicus curiae at both the trial and appellate level. (Id. at p. 792, fn. 10.) The court’s observation did not change the fact that Campaign had, in fact, chosen to assert standing as a party and participate as such in the trial and appellate proceedings.
In short, Campaign was not an amicus curiae but was instead a party whose lawsuit was dismissed for lack of a justiciable controversy. California courts routinely award costs against parties whose lawsuits are dismissed for lack of standing. (See Larry Menke, Inc. v. DaimlerChrysler Motors Co., LLC (2009) 171 Cal.App.4th 1088, 1095; Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1039; Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 567; Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1016; Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 147-148.) Likewise, when a reviewing court affirms an order denying a party’s right to intervene in a lawsuit because the party lacks standing to intervene, the prevailing party is entitled to costs, unless the court indicates otherwise. (See Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 212-213.)
In one appeal arising out of the Marriage Cases, we have already awarded costs against a party found to lack standing, apparently without objection. Specifically, in City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, we considered an appeal from an order denying Fund’s motion to intervene as a party in two actions that were later consolidated into the Marriage Cases. We affirmed the trial court’s order and confirmed that Fund did not enjoy status as a party, but we nonetheless directed Fund to bear costs on appeal. (Id. at pp. 1044-1045.) The situation here is no different. Campaign lost its appeal on standing grounds and is liable to pay costs.
In support of its position, Campaign relies primarily upon Connerly, supra, 37 Cal.4th at p. 1172, a case involving an award of attorney fees under the private attorney general statute, Code of Civil Procedure section 1021.5. There, the Supreme Court held that advocacy organizations who originally participated as amici curiae in an already filed case were not liable for attorney fees. (Connerly, supra, 37 Cal.4th at pp. 1181-1182.) The case is inapposite.
As an initial matter, Connerly does not address liability for costs under Code of Civil Procedure sections 1032 and 1034, but rather focuses on liability for attorney fees under Code of Civil Procedure section 1021.5, the private attorney general statute. The distinction between costs and attorney fees is not without consequence. For example, unless a statute expressly provides otherwise, a prevailing party is entitled “as a matter of right” to recover its costs. (Code Civ. Proc., § 1032, subd. (b).) By contrast, a prevailing party has no right to recover its attorney fees from an opposing party unless expressly authorized by statute or contract. (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 604.) The purpose of fee shifting statutes such as Code of Civil Procedure section 1021.5 is “ ‘ “to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” ’ [Citation].” (Connerly, supra, 37 Cal.4th at p. 1182.) Cost recovery statutes serve no such purpose. Among other things, recoverable costs are typically modest in comparison to attorney fees, and cost recovery is available without regard to the purpose of the litigation. Further, the determination of a “successful party” for purposes of awarding attorney fees under Code of Civil Procedure section 1021.5 may be different from the determination of a “prevailing party” under Code of Civil Procedure section 1032 for purposes of awarding costs. (See Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal.App.4th 1207, 1235.) Thus, there is at least some reason to question whether the attorney fee analysis in Connerly applies to a determination of whether an individual or entity that has actively participated in litigation should bear costs.
Attorney fees may be awarded as “costs” if authorized by statute, contract, or applicable law. (Code Civ. Proc., § 1033.5, subd. (a)(10); see also Cal. Rules of Court, rule 8.278(d)(2).) Thus, attorney fees are technically a potential component of recoverable costs. However, as a practical matter, an award of costs, such as filing fees or expenses associated with record preparation, is distinct from an award of attorney fees. An award of costs is governed by Code of Civil Procedure section 1032, whereas an award of fees is governed by the statute authorizing the award of fees or, in the case of a contractual fee-shifting provision, by Civil Code section 1717. Consistent with common parlance, the term “costs” as used in this opinion refers to recoverable costs of suit excluding attorney fees.
Even assuming Connerly applies to an award of costs, that case does not suggest a party found to lack standing should be excused from paying costs. In Connerly,the plaintiff challenged affirmative action programs of six state agencies. (Connerly, supra, 37 Cal.4th at p. 1173.) A group of organizations and associations generally in favor of affirmative action, including the California Business Council, obtained permission to appear as amici curiae. (Ibid.) Only one of the state agencies defended its programs on the merits. (Id. at p. 1174.) Because the state agencies for the most part opted not to defend on the merits, it fell to the amici curiae to defend the state programs and statutes, and at some point in the litigation they were redesignated as real parties in interest. (Id. at p. 1172.) The California Business Council acted in many respects as lead counsel in defending the state agencies’ affirmative action programs. (Id. at p. 1182.) However, as the Supreme Court explained, “[i]t played this active role... at plaintiff’s invitation and with the encouragement of the trial court, in order to conduct litigation that would otherwise not have been adversarial.” (Ibid., fn. omitted.) The court held that the California Business Council was not liable for attorney fees even though it actively participated in the litigation. According to the court, the California Business Council had only an ideological or policy interest typical of an amicus curiae, and its active participation alone, without a direct interest in the litigation, was not a sufficient ground for imposing attorney fees. (Id. at pp. 1181-1182.)
This case presents almost the opposite factual scenario from that in Connerly. Unlike the amicus groups in Connerly, the Campaign was a plaintiff from the outset that brought its own suit. Campaign chose an active role in the litigation on its own and not at the invitation of the court or opposing parties. There was no lack of adversity in the Marriage Cases that required Campaign to step in and assume a more active role. Campaign steadfastly argued at every level that it had standing to sue as a party and refused to participate solely as an amicus. It claimed to have a direct interest in the litigation even though it was ultimately found to have no such interest. At no stage of the litigation did Campaign ever seek leave to participate as an amicus or file an amicus brief. Nor was it ever designated as an amicus by any court. Just as the participation of the amicus groups in Connerly did not “convert an amicus curiae into a real party in interest liable for attorney fees” (Connerly, supra, 37 Cal.4th at p. 1182), the Supreme Court’s ultimate dismissal of the Campaign complaint did not “convert” the Campaign into an amicus immune from liability for costs.
Contrary to what Campaign and amici curiae suggest, our decision does not discourage organizations with purely ideological or policy interests in litigation from participating as amicus curiae and offering their points of view for courts to consider. The Supreme Court received 45 amicus curiae briefs in the Marriage Cases. (Marriage Cases, supra, 43 Cal.4th at p. 792, fn. 10.) We likewise received a substantial number of amicus briefs when the matter was pending before this court. As far as we are aware, none of the entities or individuals who participated solely as amicus curiae in the proceedings before this court or the Supreme Court has had to bear any other party’s costs or fees. Campaign could have participated as an amicus curiae but chose not to, electing instead to assert its standing as a party until the issue was finally resolved by the Supreme Court. As a party whose case was ultimately dismissed for lack of a justiciable controversy, Campaign is liable for costs.
Disposition
The orders directing Campaign for California Families to pay costs are affirmed. City and County of San Francisco and the Rymer/Equality California parties are entitled to costs on appeal.
We concur: Pollak, J., Jenkins, J.